Hernandez-Gil v. Gonzales, 04-72303.

• Decision Date: 16 February 2007
• Docket Number: No. 04-72303.,04-72303.
• Citation: 476 F.3d 803
• Parties: Edgar HERNANDEZ-GIL, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

476 F.3d 803

Edgar HERNANDEZ-GIL, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-72303.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2006.

Filed February 16, 2007.

Carlos A. Singer, Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles, CA, for petitioner Edgar Hernandez-Gil.

Peter D. Keisler, Assistant Attorney General, Civil Division; Anthony W. Norwood, Senior Litigation Counsel; and Virginia Lum, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent Alberto Gonzales, United States Attorney General.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-536-600.

Before HARRY PREGERSON, RONALD M. GOULD, and RICHARD R. CLIFTON, Circuit Judges.

GOULD, Circuit Judge.

Edgar Hernandez-Gil, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals's ("BIA's") decision summarily affirming the Immigration Judge's ("IJ's") denial of his application for cancellation of removal. Hernandez-Gil contends that the IJ erred in denying his motion for a continuance and violated his statutory right to counsel by proceeding with the merits hearing without his attorney being present. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and grant his petition for review.¹

I

Hernandez-Gil entered the United States on or about April 15, 1991. He is not married, but lives with the mother of his two United States citizen sons. On July 31, 2001, the former Immigration and Naturalization Service ("INS") charged Hernandez-Gil with removability under 8 U.S.C. § 1182(a)(6)(A)(I), as an alien who had not been admitted or paroled into the United States. On October 17, 2001, he appeared with his retained counsel, Gloria Weil-Herrera, before the IJ and admitted to the INS's allegations. Weil-Herrera advised the IJ that Hernandez-Gil would apply for cancellation of removal, and the IJ set a merits hearing for that application on February 20, 2003.

Hernandez-Gil attended the February 20, 2003 merits hearing, but Weil-Herrera did not appear. Mr. McGuire, an attorney who worked with Weil-Herrera, dropped by the IJ's courtroom and indicated to the IJ that Weil-Herrera "was supposedly in another courtroom." The IJ asked Hernandez-Gil if he had met with Weil-Herrera in the last year and a half, in preparation for the merits hearing. Hernandez-Gil said that he had not. The IJ asked why, and Hernandez-Gil said that Weil-Herrera "didn't give [him] an appointment," and he had not contacted Weil-Herrera for an appointment. The IJ then told Hernandez-Gil that the cancellation of removal proceedings would continue.

The IJ explained to Hernandez-Gil the requirements for cancellation of removal for non-permanent residents. When asked if he was prepared to "go forward at this time," Hernandez-Gil responded, "No." The IJ then asked Hernandez-Gil if he "would like a continuance to get with an attorney," to which Hernandez-Gil said, "Yes." The IJ, however, denied the application for a continuance, explaining that because Hernandez-Gil's "case ha[d] been on calendar since October of the year 2001" she was "not in a position . . . to grant [Hernandez-Gil] a continuance."²

After explaining the procedure for the hearing, instructing Hernandez-Gil to "feel free to ask" any questions, and taking Hernandez-Gil's testimony, the IJ determined that Hernandez-Gil had established ten years of continuous physical presence and had good moral character. The IJ, however, denied cancellation of removal and granted voluntary departure, concluding that Hernandez-Gil had not established that either of his two United States citizen sons would experience extreme or unusual hardship upon his removal to Mexico.

Hernandez-Gil appealed the IJ's decision to the BIA, arguing that the IJ wrongly determined that he did not establish the requisite hardship and that the IJ abused her discretion by refusing to continue the case. Hernandez-Gil also argued that the non-appearance of his counsel resulted in him being inadequately represented, and required reversal of the IJ's decision. The BIA summarily affirmed the IJ's decision. This petition for review followed.

II

Hernandez-Gil argues that his statutory right to counsel, which he never waived, was violated when the IJ proceeded to hold his merits hearing despite the absence of Hernandez-Gil's retained counsel and his request for a continuance in order that he be able to appear with counsel. In light of the circumstances of this case, it is clear that Hernandez-Gil did not waive his statutory right to counsel.

In order "for an applicant to appear pro se, there must be a knowing and voluntary waiver of the right to counsel." Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.2004) (italics in original) (citing Velasquez Espinosa v. INS, 404 F.2d 544, 546 (9th Cir.1968)). For a waiver of the right to counsel to be valid, an IJ must "(1) inquire specifically as to whether petitioner wishes to continue without a lawyer; and (2) receive a knowing and voluntary affirmative response." Id. (citations omitted). Failure to obtain such a waiver is a denial of the right to counsel. Id.

Here, Hernandez-Gil did not knowingly and voluntarily waive his right to counsel. Indeed, Hernandez-Gil told the IJ explicitly that he was not prepared to go forward, did not want to proceed without his lawyer, and requested a continuance so he could have his lawyer, Weil-Herrera, present at the hearing. In the face of the request made by Hernandez-Gil, the IJ was not correct to say that Hernandez-Gil was "basically representing [him]self." On these facts, it is clear that Hernandez-Gil did not waive his statutory right to counsel.

III

Because deportation "visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom[,] . . . [m]eticulous care must be exercised lest the procedures by which [an alien] is deprived of that liberty not meet the essential standards of fairness." Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945). "One way we ensure that the `standards of fairness' are met is by guaranteeing that aliens have the opportunity to be represented by counsel. The high stakes of a removal proceeding and the maze of immigration rules and regulations make evident the necessity of the right to counsel." Biwot, 403 F.3d at 1098. Though there is no Sixth Amendment right to counsel in immigration proceedings, Congress has chosen to ensure that all aliens receive a full and fair hearing by providing a statutory right to counsel. See 8 U.S.C. §§ 1229a(b)(4)(A)³ and 1362;⁴ see also Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002) (stating that an alien is entitled to a full and fair hearing of his or her claims and a reasonable opportunity to present evidence). We have previously held that the statutory right to counsel at immigration proceedings "stems from a constitutional guarantee of due process." See Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir.2006) (citing Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.1985)); see generally Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999) ("The Fifth Amendment guarantees due process in deportation proceedings.").

The importance of the right to counsel, whether it is guaranteed by the Constitution or by Congressional action, cannot be overstated. As Justice Sutherland explained in Powell v. Alabama:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law ... He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.

287 U.S. 45, 68-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); see also Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (citing the "sound wisdom upon which the Court's holding in Powell v. Alabama rested" and holding that the Sixth Amendment right to counsel applies to the states through the Fourteenth Amendment). Though Justice Sutherland was referring to a criminal defendant's Sixth Amendment right to counsel in Powell, the import of his words also speaks to the statutory right to counsel in immigration proceedings. Indeed, it is difficult to imagine a layman more lacking in skill or more in need of the guiding hand of counsel, than an alien who often possesses the most minimal of educations and must frequently be heard not in the alien's own voice and native tongue, but rather through an interpreter. Accordingly, "[t]o infuse the critical right to counsel with meaning, we have previously held that IJs must provide aliens with reasonable time to locate counsel and permit counsel to prepare for the hearing." Biwot, 403 F.3d at 1098-99 (citing Rios-Berrios v. INS, 776 F.2d 859, 862-63 (9th Cir.1985)).

Here, Hernandez-Gil exercised his right to counsel and retained Weil-Herrera. Weil-Herrera represented him at his first removal proceeding. At Hernandez-Gil's subsequent cancellation of removal hearing, the IJ acknowledged that Hernandez-Gil had retained Weil-Herrera as his counsel and that Weil-Herrera was absent from the proceedings. The IJ, however, denied Hernandez-Gil's request for a continuance to permit Hernandez-Gil to appear with his attorney, and instead conducted the merits hearing with no lawyer present for Hernandez-Gil, despite the fact that Hernandez-Gil had not waived his right to counsel.

When a petitioner does not waive his right to counsel, "the IJ must inquire whether there is good cause to grant petitioner more time to obtain counsel." Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir.2005). When the IJ learned that Hernandez-Gil did not want to proceed without his counsel, the...